US v. Johnny Fancher
UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, Plaintiff - Appellee, v. JOHNNY RAY FANCHER, Defendant - Appellant.
Appeal from the United States District Court for the Northern District of West Virginia, at Elkins. Robert E. Maxwell, Senior District Judge. (2:05-cr-00013-REM-JSK-1)
April 30, 2009
June 26, 2009
Before TRAXLER and KING, Circuit Judges, and Benson Everett LEGG, Chief United States District Judge for the District of Maryland, sitting by designation.
Vacated and remanded by unpublished per curiam opinion.
Brian J. Kornbrath, Federal Public Defender, Clarksburg, West Virginia, for Appellant. Sharon L. Potter, United States Attorney, David J. Perri, Robert H. McWilliams, Jr., Assistant United States Attorneys, Wheeling, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM: This case is before the court after resentencing on remand. In our previous decision, we found error in the
district court's failure to provide advance notice that it was considering accordingly resentencing. 2008). an upward variance Fancher's in sentencing and Fancher. remanded We for
United States v. Fancher, 513 F.3d 424 (4th Cir.
On remand, the district court provided advance notice
that it was again considering an upward variance, conducted the resentencing hearing, and again sentenced Fancher to the
statutory maximum 480 months of imprisonment. not, however, provide Fancher an opportunity
The court did to address the
court prior to the imposition of sentence, as required by Fed. R. Crim. P. 32(i)(4)(A)(ii). the district court did not Counsel for Fancher objected, but take corrective action. Fancher
timely appealed. On appeal, Fancher argues that his due process rights were violated by the district court's failure to offer him the opportunity to speak, and that his sentence is unreasonable. The Government concedes that the district court committed
reversible error in failing to allow allocution.
This court has
held that a district court commits plain error if it does not afford the defendant an opportunity to allocute at a
United States v. Muhammad, 478 F.3d 247, 2
250 (4th Cir. 2007).
There is, however, no per se rule of
reversal when the district court denies a defendant's right to allocute under Fed. R. Crim. P. 32(i)(4)(A)(ii). Muhammad, 478 F.3d at 249. determine Instead, the court "should examine each case to the error was prejudicial." Id. (quoting
United States v. Cole, 27 F.3d 996, 999 (4th Cir. 1994)). In because Muhammad, the to court applied to plain error review court's
failure to allow him to allocute. however, counsel to specifically and
Id. at 249. to 32. the
In this case, lack of an the
objected cited Rule
Government has the burden of demonstrating that any error was harmless, which requires a showing that the court's error did not affect Fancher's sentence. 208, 223 (4th Cir. 2005). carry its burden, but United States v. White, 405 F.3d
The Government does not attempt to that the District to Court the
"acknowledges when to it
neglected on his own
imposing sentence." Accordingly, we vacate Fancher's sentence and remand for resentencing. facts and legal We dispense with oral argument because the contentions are adequately presented in the
decisional process. VACATED AND REMANDED
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